Wilson v. Hepsilbah Wilson Petitioners

Prayer in CRP(PD) MD. No. 2142 of 2009 Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order and decreetal order dated 19-06-2009 in I.A No. 116 of 2007 in A.S No. 115 of 2006 on the file of the learned Subordinate Judge, Padmanabhapuram at Kanyakumari District.

Prayer in CRP(PD) MD. No. 2143 of 2009 Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order and decreetal order dated 19-06-2009 in I.A No. 140 of 2007 in A.S No. 115 of 2006 on the file of the learned Subordinate Judge, Padmanabhapuram at Kanyakumari District.

:COMMON ORDER

The revision petitioners are the appellants in A.S No. 115 of 2006 on the file of the learned Subordinate Judge, Padmanabhapuram. The revision petitioners filed the O.S No. 87 of 2003 on the file of the learned District Munsif, Padmanabhapuram, for declaration that the increase of property tax for the plaint Schedule property subsequent to 31-03-1999, is void, illegal and ultra vires and for other reliefs. The plaintiffs examined the qualified Engineer to prove the actual area of construction and also filed the report of the qualified Engineer and after considering the evidence adduced by both parties, the learned District Munsif was pleased to dismiss the suit by judgment and decree dated 17-08-2006, and against that the revision petitioners have filed the first appeal in A.S No. 115 of 2006 on the file of the learned Sub-Court, Padmanabhapuram.

2. During the pendency of the first appeal the appellants/revision petitioners filed I.A No. 140 of 2007 for amendment of pleadings to the effect that there is a difference between the proposed area of the construction as per blue print and the area actually constructed and the first defendant has not physically verified the same and levied the tax without reference to actual construction and on that basis, the petitioners also filed I.A No. 116 of 2007 for appointment of Commissioner to note down the physical features of the property. The learned Subordinate Judge, dismissed the I.A No. 140 of 2007 stating that the plaintiff has given evidence that he constructed the suit building according to the blue print and now, he contended that he constructed the suit building in a lesser area than the area mentioned in the plan sanctioned by the first defendant and the first defendant has levied the tax for the area mentioned in the plan and for the purpose of finding out the actual measurement, he has applied for appointment of Commissioner and also filed an application for amendment and this is a new plea taken by the appellant in appeal and hence, that cannot be allowed to be taken in an appeal. He has also stated that in evidence, the appellant has stated that he constructed the suit building as per blue print and therefore there is no need for amendment. The application for appointment of Commissioner was also dismissed stating that the application for amendment was dismissed and consequently, the application for appointment of Commissioner was also dismissed. Challenging the two orders, these two revision petitions are filed.

3. Mr. Xavier Rajini, learned Counsel for the petitioners has submitted that no reason was stated by the lower Court while dismissing the application for appointment of Commissioner and the application for appointment of Commissioner cannot be dismissed consequent to the dismissal of the application for amendment. According to the learned Counsel, the lower Court ought to have given reasons for dismissing the application for appointment of Commissioner. He further contended that the case of the appellant/plaintiff is that without properly verifying the actual area of construction by the plaintiff, the authorities have arbitrarily fixed the tax and if an Advocate Commissioner is appointed, he would measure the actual construction and the actual area of construction is lesser in extent than the extent of construction mentioned in the plan and that would also prove the case of the plaintiff.

4. According to me, in this case, there is no need for appointment of Advocate Commissioner. It is admitted that the building is already assessed to tax and the original tax was Rs. 2,312/- per half year and it was enhanced to Rs. 11,472/-. It is not stated in the plaint that the plaintiff has constructed the additional portion and the area of the additional construction is less than the area of the construction mentioned in the plan and the authorities have taken the area of construction mentioned in the plan for levying the tax and therefore, to prove the actual area of construction, the Commissioner to be appointed. The plaint is silent about the area of the construction and in the plaint, the plaintiff only challenged the enhancement of tax stating that it is arbitrary. The actual area of construction was not at all stated in the plaint and it is not the case of the plaintiff that the authorities have enhanced the tax on the basis of the area of construction mentioned in the plan. Further, in evidence also, he has not stated that he has constructed a lesser extent than that of the extent mentioned in the plan. He has only stated that the tax was not levied according the provision of the Municipalities Act and without measuring the area of construction they have fixed the tax arbitrarily. In cross examination, he has stated that he applied for permission from the Panchayat and after getting the permission, he constructed the building and the officials of the Panchayat inspected the building after construction and levied the tax. Therefore, it has been rightly held by the lower Court that after inspecting the properties, the tax was levied and hence, there is no need for appointment of Commissioner or for the amendment sought for by the plaintiff. As stated supra, it is not the case of the plaintiff during the trial R.S RAMANATHAN, J. gsr that he has constructed a lesser extent than the area mentioned in the plan and in such circumstances, there is no need for appointment of Commissioner or to permit the petitioner to amend the plaint to that effect. Hence, the lower Court has rightly considered the merits of the case and dismissed the application.

5. Hence, I do not find any reason to interfere with the order passed by the lower Court and the Civil Revision Petitions are dismissed. The lower appellate Court is also directed to dispose of the appeal without being influenced by any of the observations made in this order. No costs. Consequently, connected Miscellaneous Petition is dismissed.